Days after the state of Mississippi filed a legal brief openly calling for the Supreme Court to overturn the contentious 1973 Roe v Wade decision, which made abortion a constitutional right, 228 Republican Members of Congress filed a brief supporting the stance taken by the Magnolia State asking the Court to not only uphold Mississippi’s law (which prohibits abortions after 15 weeks) but also to recognize that some precedents might be reconsidered and even “wholly or partially overturned”.
The brief argues that the Court should “release its vice grip” of abortion politics and let the states and Congress produce legislation that is reflective of “America’s varying viewpoints” while also being “grounded in the science of fetal development and maternal health”. The brief also held the same position as Mississippi’s are that using viability as a benchmark to determine which abortions should be permitted or not, quoting legal analysts who have panned the decision that set such a precedent (Casey v. Planned Parenthood) as “arbitrary”.
The case in question called Jackson v. Woman’s Health Organization asks if Mississippi’s ban on almost all abortions after 15 weeks is constitutional, with the case also challenging the “viability” test that limits the legality of abortions until after a fetus is deemed to be viable.
Mississippi against Roe v Wade
The amicus curiae brief, a legal tool used by groups who have a strong interest but are not parties of the case itself to make their opinions known, was signed by a wide variety of Republican lawmakers, both from the Senate and the House.
Senate Minority leader Mitch McConnel (R-KY) was accompanied by 43 fellow senators including Marco Rubio (R-FL), Mitt Romney (R-UT), Rand Paul (R-KY), Tim Scott (R-SC), Lindsey Graham (R-SC), among others. In the House, Minority Leader Kevin McCarthy (R-CA) signed the brief along with the rest of the House GOP leadership, the likes of Dan Crenshaw (R-TX), Mario Diaz-Balart (R-FL), Liz Cheney (R-WY), with a total of 186 GOP representatives signing the brief.
GOP members of Congress have not been the only ones filing briefs in support of Mississippi’s challenge to the courts. At least 10 Republican governors, including Florida’s Ron DeSantis and Texas’ Greg Abbott, have joined the brief presented by the Governor of South Carolina Henry McMaster arguing that the current jurisprudence on abortion is “an unwarranted intrusion into the sovereign spheres of the States”.
Senators Ted Cruz (R-TX), Josh Hawley (R-MO), and Mike Lee (R-UT) also filed a separate document to the Court arguing that holding the previous precedent in this case (a doctrine called “stare decisis”) should not be the default position of the cour tas they argue the current jurisprudence on abortion is “unworkable”.
Politicians have not been the only ones supporting Mississippi’s case. In a statement to El American, Lila Rose, the founder of the pro-life advocacy group Live Action said that “Roe V Wade and Casey v. Planned Parenthood are nonsensical, unjust laws that have enabled the killing of over 60 million innocent preborn children”. Rose also said that the advance of modern medicine has made previous definitions of viability “vague, outdated and ever-changing”, adding that “Since Roe, the viability marker has moved from 28 weeks to 22 weeks. We now have 4-D ultrasounds, medical advancements which allow us to perform surgery and save life in-utero, and high-definition footage showing the earliest moments of life.”
Rose also added that the pro-life movement, of which she is one of the most recognizable faces, “has worked every day to educate the world about the reality of what abortion does to a preborn child, what abortion does to a woman, and how it has deeply wounded our view of motherhood, and families, adding that her organization calls for the Court to “cast these decisions (Roe and Casey) to the dustbin of history along with Dred Scott, Plessy, and Korematsu”.
The importance of Mississippi’s case
The Supreme Court has made dozens of highly controversial decisions throughout its long history, however, it would not be an understatement to say that Roe v Wade is surely one of the most divisive decisions the Court has ever made. The country is heavily (and almost equally) divided between the pro-life and pro-choice camps, with each side having an energetic and committed base of activists working to push their opinion in the public sphere.
The Supreme Court will be facing a potentially groundbreaking decision on abortion later next year, as they would have to decide not only the constitutionality of Mississippi’s abortion law but also of the usefulness of the viability test and even in the current jurisprudence over abortion is constitutional at all.
In any normal circumstances, this decision would be an extremely contentious one. However, this case finds a Court that is composed of six justices nominated by Republican Presidents, with many progressives openly calling for Congress to “pack the court” by flaunting more than a hundred years of precedent and add more Justices (ostensibly progressive ones) to the bench. Any decision the Court makes will have this Damocles sword over its head, as progressives will surely amp their calls for court-packing if the Court rules against their wishes.
All eyes will be on the newest members of the Court, the Trump-appointed Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett who will play a crucial role in the arithmetic of the Cout’s final decision.